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Declaration of Restrictions & Covenants, Easement

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EPA Region 5 Records Ctr. 287970 OFFICE OF COUNTY RECORDER WADENA COUNTY MINNESOTA I hereby certify that this instrument #___ was filed/recorded in this office for record on the i &i day of _ VovreMAJU/i 2007 at 1:3.0 am@jg) Soledad Henriksen, County Recorder y. <^^rfp^LJSPM/lA-tN^,V\—COMPARED recording fee - well certificate SCANNED DECLARATION OF RESTRICTIONS AND COVENANTS, EASEMENT, AND AFFIDAVIT CONCERNING REAL PROPERTY CONTAMINATED WITH HAZARDOUS SUBSTANCES THIS DECLARATION OF RESTRICTIONS AND COVENANTS, EASEMENT, AND AFFIDAVIT ("Declaration") is made by Hazel V. Ritari, ("Owner"). The facts stated herein are stated under oath by Hazel V. Ritari and are intended to fulfill the disclosure requirements of Minn. Stat. §115B.16, subd. 2 (2002). WITNESSETH: WHEREAS, Hazel V. Ritari is the fee owner of certain real property located at 16236 2'00th Street, Sebeka, Minnesota, in Wadena County, Minnesota, as described herein (the "Property"); and WHEREAS, a portion of the Property was the Site of release(s) or threatened release(s.) of certain hazardous substances or pollutants and contaminants, known as the Ritari Post and Pole Superfund Site ("Site"); and WHEREAS, the Owner is the widow of Melvin RitarL, the former owner and operator of the post and pole treating facility located on the Site, known as Ritari Post and Pole Company; and WHEREAS, the MPCA inspected the facility in 1976, noting improper storage and disposal of sludge wastes. Between 1976 and 1980, residential water supply wells in the area and packaged pork samples from neighboring properties were sampled and analyzed for phenols. Pentachlorophenol ("PCP") was detected in a water sample from the neighboring well and in the meat from the packaged pork samples analyzed by the Minnesota Department of Agriculture ("MDA"); and WHEREAS, from 1955 to 1959, a portion of the Property was used for the treatment of wood fencing and building products using creosote. From 1959 to 1979, oil-based PCP was used lor treatment, but the operation was converted to water-based PCP in 1979 and used water-based PCP until 1991; and WHEREAS, as a result of the operations at the Site, soil and ground water were contaminated by poJyaromatic hydrocarbons ("PAH"), pentachlorophenol ("PCP"), dioxins and furans ("dioxins") (collectively known as the "contaminants of concern"). The contamination originated from drippings off the recently treated products and from sludge that was drained out to a drying area; and WHEREAS, the Site was listed on the federal National Priority List ("NPL") in July 1987 and the State of Minnesota Permanent List of Priorities ("PLP") in October 1984; and WHEREAS, in an effort to comply with MPCA direction from 1976 through 1983, pursuant MPCA authority under Minn. Stat. §§ 115 and 116 regulating pollution of air, water and solid waste, Melvin Ritari replaced a neighbor's well in 1980, and conducted a portion of the investigative work; and WHEREAS, pursuant to the Minnesota Environmental Response and Liability Act O'MERLA"), Minn. Stat. §§ 115B.01-.24 (2002), and the federal Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), as amended, 42 USC § 9601 (1980) el s^., the Minnesota Pollution Control Agency ("MPCA"): issued a Request for Response Action ('LRFRA") on February 25, 1986 to Glenn Ritari, the then-current operator of the facility: issued a Determination of Inadequate Response on April 22, 1986 stating the responsible party failed to comply with the terms and conditions of the RFRA in a timely manner; obtained federal funding; investigated, remediated, and is conducting operation and maintenance at the Site; and WHEREAS, from 1980 to 1992, the MPCA conducted a Remedial Investigation ("RI"), and installed 26 monitoring wells/piezometers to detect the magnitude and extent of contamination in soils and water, determine aquifer characteristics, and assess the plume stability; and WHEREAS, the MPCA issued a Remedial Investigation Report ("RI Report") dated L>ecember 11, 1992, indicating the highest concentration of contaminants of concern were detected near the areas where the wood products and been treated and stored. Up to 12,000 mg/kg PCP and 36 ug/kg dioxin equivalents were observed in surface soils, and up to 970 mg/kg PCP and 25 ug/kg dioxin equivalents were observed in the subsurface soils. PCP and dioxin were detected in the upper sand/outwash aquifer. Contaminant levels appeared to decrease vertically within the upper aquifer. No indication of contamination was observed for the lower sand and gravel aquifer geologic unit. Ground water contaminant levels near the wood treatment area ranged from 88 to 1,800 milligrams per liter (mg/L) for PCP and 56 to 1,640 nanograms per liter (ng/L) for dioxins. The extent of the PCP and dioxins contamination seemed to be limited to the Property affecting soil, ground water and some business buildings; and WHEREAS, a Record of Decision ("ROD") was executed on June 30, 1994, setting forth the remedial actions to be taken at the Site. An Explanation of Significant Difference ("ESD") was executed on July 2, 1999, providing the rationale for modification of the remedial action set forth in the ROD; and WHEREAS, the First Five-Year Review Report for the Site dated September 29, 2003, included the following response actions: 1. Removal and disposal of 39 drums of spent wood treating solution in 1997 by the United States Environmental Protection Agency ("U.S. EPA"); 2. Implementation of US EPA - and MPCA-funded ground water remedial actions, institutional controls, private water supply replacement, monitoring, and a contingency plan; and 3. Implementation of the EPA- and MPCA-funded soil remedial actions in 2001, including excavation of contaminated soils down to the water table, cleansing of buildings on the Property, and the consolidation of contaminated soil and materials under a RCRA-compliant cap ('capped hazardous waste cell"); and WHEREAS, the Remedial Action Completion Report describing the cleanup pursuant to the ROD and ESD, including excavations, construction of the capped hazardous waste cell, and operation and maintenance requirements, was approved with modifications by the MPCA, with E1PA concurrence, on September 25, 2002; and WHEREAS, because contamination remains at the site above levels that allow for unlimited use and unrestricted exposure, five-year reviews will be conducted to assure the remedy remains protective. The next five-year review is scheduled for September 30, 2008; and WHEREAS, the capped hazardous waste cell and some residual PCP and dioxins contamination remain in the ground water and in the soils on the Site, described on the Site maps attached hereto as Attachments 1 and 2 and herein incorporated by reference, within the south one-half of the 40 acres described as follows: The southeast quarter of the southwest quarter of Section 19 Township 137 N Range 34 W, in Meadow Township, Wadena County, Minnesota. WHEREAS, the PCP may degrade under certain conditions; the dioxins are not likely to degrade. Known contamination in the ground water above the drinking water health risk levels exists on the Property, and contamination of a residential well to the east of the Property suggests the ground water contamination may extend, or may have extended in the past, off-Site to the east. Exact dimensions change with time; Attachment 1 illustrates the known extent and magnitude of ground water contamination with solid lines, and the estimated potential area has dotted lines. Some known soil contamination above health risk levels, in several specific areas and in areas below the clean fill in excavated areas, are located within the south one-half of the 43 acres described above as shown in Attachment 2. The capped hazardous waste cell contains highly contaminated soils and debris is also shown on Attachment 2. East and west of the known areas, low-level contamination may also exist in the surface soils below health risk levels effective at the time of the cleanup decision. Monitoring wells and fencing are shown on the Attachments. Detailed information of the current conditions including the monitoring wells, capped hazardous waste cell, and other remedial actions are included in the MPCA's Five Year Review Report, dated September 29, 2003, and in subsequent MPCA monitoring reports; and WHEREAS, residual contamination levels remain at the Site; protectiveness of human health or welfare or the environment is achieved by the combination of response actions and institutional controls;, as set forth in the ROD and ESD; and WHEREAS, protectiveness of the remedial action is assured by regular maintenance of the cap on the hazardous waste cell, by periodic evaluations of site conditions against reviews of new information about risk, and by notice to potential buyers and users of the site through the Declaration of Restrictions and Covenants, Easement, and Affidavit Concerning Real Property Contaminated With Hazardous Substances, which shall be recorded at the Wadena County Recorder's Office and commits current and future owners to the use Restrictions herein; and WHEREAS, if ground water monitoring demonstrates that contaminated ground water above the federal Maximum Contaminant Levels will move beyond the Property boundary, the affected ground water will require implementation of the contingency remedy of containment and treatment set forth in the ROD; and WHEREAS, pumping in the north half of the Property may draw contamination from the south half of the Property to the north half; WHEREAS, the MPCA has the authority to acquire an interest in real property necessary for environmental response actions under Minn. Stat. §115B.17, subd. 15; and WHEREAS, Owner has agreed to place a Declaration of Restrictions and Covenants, Easement, and Affidavit Concerning Real Property Contaminated with Hazardous Substances on the Property for the purpose of protecting public health or welfare or the environment; and WHEREAS, Owner has agreed to convey to the STATE OF MINNESOTA an Easement to certain described parcels of property that Owner owns and which are hereinafter described.
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